R (CVN) v Croydon London Borough Council

Held, allowing the claim, that, construed in their statutory context and according to the ordinary and unambiguous meaning of the words used, the “Convention rights” referred to in paragraph 3 of Schedule 3 to the Nationality, Immigration and Asylum Act 2002 were all of the Convention rights listed in section 1 of the Human Rights Act 1998, without limitation by reference to the purpose for which the relevant power or duty under the Children Act 1989 had originally been exercised or performed; that, therefore, where a local authority had previously provided assistance under section 23C(4)(b) of the 1989 Act to a former relevant child who had become ineligible for such assistance pursuant to paragraphs 1 and 7 of Schedule 3 to the 2002 Act, it would nevertheless be authorised by paragraph 3 of Schedule 3 to continue providing such assistance if, and to the extent that, the provision of such assistance was necessary for the purpose of avoiding a breach of any of the former relevant child’s rights under articles 2 to 12 and 14 of the Convention or articles 1 to 3 of the First Protocol to the Convention; that, therefore, a local authority would be authorised by paragraph 3 of Schedule 3 to the 2002 Act to provide assistance to a former relevant child under section 23C(4)(b) of the 1989 Act if that was necessary for the purpose of avoiding a breach of the former relevant child’s right under article 3 of the Convention not to be subjected to inhuman or degrading treatment, notwithstanding that assistance had originally been provided in order to meet “his welfare and his educational … needs”, within section 23C(4)(b), rather than to prevent destitution; that such a construction did not produce absurdity since a local authority’s duty under section 23C(4)(b) of the 1989 Act was to provide assistance to the extent that both the “welfare” and “educational” needs of a former relevant child required it, the dominant theme plainly being “welfare”, although assistance provided pursuant to section 23C(4)(b) had to be connected to the educational needs of the former relevant child and was thus wider than welfare alone; that it followed that, for the purposes of paragraph 3 of Schedule 3 to the 2002 Act, it could be necessary to provide assistance under section 23C(4)(b) of the 1989 Act in order to prevent a breach of a former relevant child’s rights under article 3 of the Convention if and to the extent that the breaches were connected to that person’s continuing educational needs when the breach of article 3 would materially jeopardise that person’s ability to effectively access and engage in education and hence enjoy his right to education under article 2 of the First Protocol to the Convention; that, in the present case, the local authority had erred in failing to consider whether its power under section 23C(4)(b) of the 1989 Act was exercisable to prevent a breach of article 3 of the Convention as connected to the claimant’s educational needs; and that, in the circumstances, a declaration would be granted that it was necessary for the local authority to continue to pay for the claimant’s accommodation and provide subsistence support to him under section 23C(4)(b) of the 1989 Act to avoid a breach of his rights under article 3 of the Convention and thus support his continuing education (post, paras 38–40, 46, 49, 51–54, 58, 60–63, 66–68, 89, 94, 96–99, 103–104).

R (Westminster City Council) v National Asylum Support Service[2002] 1WLR2956, HL(E) and R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department[2023] AC255, SC(E) applied.

R (O) v Barking and Dagenham London Borough Council[2011] 1WLR1283, CA and R (Sabiri) v Croydon London Borough Council[2012] EWHC 1236 (Admin) considered.